Brexit barrister: Article 50 may have already been triggered

Twitter / @JolyonMaugham LONDON — The man behind a fresh Brexit legal case says there is ample evidence to suggest that the UK government has already triggered Article 50 of the Lisbon Treaty.

London-based barrister Jolyon Maugham has crowd-sourced £70,000 to ask the Irish High Court to examine whether Article 50 can be revoked once it has been triggered. The case will be referred to the European Court of Justice (ECJ), as it is a matter of European Union law.

Whether Article 50 is irrevocable or not is a crucial issue.

If the ECJ decides that it is revocable then MPs will feel more confident in blocking any Brexit deal Theresa May manages to negotiate, as Britain's official departure from the EU would no longer be inevitable. It would also increase the likelihood of the another referendum being held, but in this instance on the terms of Britain's exit.

Speaking to Business Insider on Tuesday, Maugham made the incredible claim that Theresa May could have invoked Article 50 already, which if true would mean Britain's formal departure from the EU has already begun.

"If you look at the terms of Article 50 itself, one of the terms is there has to be a decision and there has to be notification. The government's position is there has been a decision. So, what you're left with is the requirement that there be notification. We know that in October Theresa May met with her fellow leaders at an EU council meeting and told them we were leaving. Now, there's no requirement in Article 50 that notification must be served on heavy watermarked paper. There is no requirement for formality at all.

"If you then cast your net more widely and you look around at the surrounding circumstances, you can see that the EU are now meeting privately without us. Article 50 says this is something that is not supposed to happen until after we have triggered it. If you look at the fact that the EU has appointed negotiators — that's something that's not supposed to happen until after we have triggered Article 50. If you look at the fact they've formulated their negotiating strategy — that's something that shouldn't happen until after you trigger Article 50.

"And finally, just the other day Michel Barnier said that the discussions needed to be concluded by October 2018 because member states would need to vote on the deal that was being offered. October 2018 is two years from the date that this claim suggests Article 50 may have been notified on. If you look at the surrounding context, this idea that was initially counterintuitive begins to acquire at the very least the quality of being arguable. It's not my notion, it's a notion that's been put forward by the lawyers in the case and it's a point that at present we intend to take."

Interestingly, this claim is not an off-the-cuff conspiracy theory, but an argument that the lawyers representing Maugham's case will raise when the question is put before the judges, which is expected to be in March next year.